1. The master of a vessel can neither sell nor hypothecate the
cargo, except in case of urgent necessity, and he can only lawfully
do what is directly or indirectly for its benefit, considering the
situation in which it has been placed by the accidents of the
voyage.
2. The necessity under which he acts is a question of fact, to
be determined in each case by its circumstances, and upon his
hypothecation of the cargo under his implied authority, the lenders
are chargeable with notice of the facts on which he appears to rely
as his justification, and they must make inquiries and judge for
themselves and at their own risk whether the owner, if present,
would do or ought to do what, in his absence, the master is
undertaking to do for him. Before there can be a recovery against
the owner, it must be shown that the circumstances were such as to
make it apparently proper for the master to do what he has done. To
this extent, the burden of proof is clearly on the lenders.
3. Where it appears that from the port where the vessel entered
in distress the cargo could be forwarded by another vessel, and
that it was for the interest of the shipper that it should be so
forwarded instead of being hypothecated to pay for the repairs of
the vessel, and that they could not have been effected without an
expense to him of very much more than it would cost to reclaim his
property, pay all lawful charges on it, and forward it by another
vessel,
held that the master had no authority to pledge
the cargo without the consent of the shipper or the consignee.
4. Although the bottomry bond cannot be enforced against the
cargo, the latter will not be held in that suit for any charges
which the vessel may have thereon where a claim for them is not
made in the libel.
The case is fully stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is a suit instituted by the Bank of St. Thomas, as the
holder of a bottomry bond, against the British brigantine
Julia
Blake, her cargo and freight. The decree of the district court
condemned the vessel and freight, but acquitted the cargo and its
claimants. No appeal was taken on behalf of the vessel and freight,
but the libellant carried the case to the circuit court for a
review of the decree as to the cargo. The
Page 107 U. S. 419
bond was for $11,600, with fourteen percent marine premium, and
the net proceeds of the vessel and freight were about $3,500. On
the hearing in the circuit court, the libel was again dismissed as
to the cargo, and from a decree to that effect this appeal was
taken. The facts found by the circuit court, on which in our
opinion the rights of the parties depend, may be stated as
follows:
The
Julia Blake, a British vessel owned by Peter Blake
of Nova Scotia, left Rio de Janeiro on or about the 31st of March,
1876, for New York, having on board a cargo consisting of 582 logs
of rosewood. The bills of lading were three in number, and were
drawn to the order of James Philip Mee of Rio de Janeiro, the
shipper, for two hundred and fifty-three, one hundred and
thirty-nine, and one hundred and ninety logs respectively. About
two hundred of the logs belonged to Mee, but the claimants had made
advances on them to him. All the rest belonged to the claimants.
The charter party was dated March 16, 1876, and named Mee as the
charterer. The stipulated freight was �220, of which �110 was paid
in advance.
Mee gave the master of the vessel on sailing a letter of
instructions directing him to proceed to New York and there consign
his vessel and cargo to Winthrop, Cunningham & Sons,
Philadelphia, the claimants, or their agents, and if compelled by
stress of weather or other accident to put into St. Thomas, to
consign the vessel to Lamb & Co. The voyage was prosecuted with
safety until the third or fourth of May, on one of which days the
rigging of the vessel parted, and her masts fell, the mainmast
breaking at the saddle, about six feet above the deck, the foremast
at the head. The fallen spars and wreck remained for some time
alongside and thumping before they could be cleared away. This
rendered it imprudent to prosecute the voyage, and the master
properly made for St. Thomas as a port of distress, where he
arrived on the 27th of May. On his arrival, he applied to the
acting British consul, who appointed a survey, consisting of the
harbor master, the principal shipwright at the port, and the master
of a vessel. The survey properly recommended a discharge of the
cargo, and it
Page 107 U. S. 420
was necessary to strip the vessel of her copper to stop the
leak. The cargo was discharged, and on the 8th of June a second
survey ordered by the consul on the application of the master. A
copy of the second survey, although in evidence, is not
incorporated into the findings, nor are its contents stated further
than that the vessel was making as much water as at the time of the
first survey, and that her metal had been much broken, and was torn
away and ragged.
When the master arrived at St. Thomas, he went to several
mercantile houses, and seemed to be seeking a proper party to whom
to consign the vessel. He finally went to Lamb & Co. and
engaged them to attend to the business of the vessel and the
repairs. He did not show them his charter party or letter of
instructions, but told them he had lost those papers.
Upon the arrival of the vessel at St. Thomas, the master wrote
his owner as follows:
"S.S.
Beta, via Halifax"
"SAINT THOMAS, 27th May, 1876"
"Peter Blake, Esq., Parsboro, Nova Scotia:"
"DEAR SIR: I regret to have to report that the brigantine
Julia Blake, on her voyage from Rio de Janeiro,
encountered heavy weather on the fourth instant, and for the safety
of lives, vessel, and cargo I was compelled to cut away to righten
the vessel, and to put into this port, as we were in a too-disabled
condition to go north. A survey will be held on Monday, and I will
supplement this letter by a telegram acquainting you what the
surveyors recommend to be done in her present leaky and damaged
state; it will likely be necessary to discharge to ascertain
damage, and for new masts, etc. This mail closes at once, so I must
defer giving you full particulars until next steamer."
"I remain, sir, your obedient servant,"
"[Signed] ABRAM KNOWLTON"
On the 29th of May he sent the following telegram to the
owner:
"
Julia Blake, St. Thomas, dismasted, leaky; consigned
Lamb; sending survey by mail. "
Page 107 U. S. 421
Afterwards, Lamb & Co., on the 13th of June and the 22d of
June, wrote the owner. Copies of their letters are as follows:
"French frigate
Minerve, via Philadelphia."
"ST. THOMAS, 13 June, 1876"
"Peter Blake, Esq., Parsboro, Nova Scotia:"
"SIR: We have to confirm Captain Knowlton's letter to you, dated
27th ult., acquainting you that the dismasted brig
Julia
Blake had put in here in a leaky and disabled condition."
"By surveyors' recommendation, the vessel has been discharged,
and is today on the marine repairing slip, for shipping and
caulking, etc.; masts, sails, etc., are being made, and in the
course of another month the
Julia Blake will probably be
ready for sea in a seaworthy state."
"Captain Knowlton dispatched you a telegram thus:"
"
Julia Blake, St. Thomas, dismasted, leaky; consigned
Lamb; sending survey by mail."
"on the 29th ult., which no doubt reached you promptly and
correctly. From his not receiving any reply from you, he concluded
that you wished him to follow the customary routine with documents,
etc. Meantime we hand herein certified copy of extended protest
from the 'British consulate,' which may interest you. No doubt your
letters will state in what manner accounts here are to be
paid."
"We remain, sir, yours, faithfully,"
"[Signed] LAMB & CO."
"
Alpha, via Halifax"
"ST. THOMAS, 22 June, 1876"
"Peter Blake, Esq., Parsboro, Nova Scotia:"
"SIR: We last wrote you on the 13th instant, via Philadelphia,
with certified copy of extended protest per
Julia Blake,
which we trust has reached you safely."
"The S.S.
Alpha arrived here today from Halifax without
bringing us any letter from you, but Captain Knowlton tells us that
he had a communication, and we therefore refer you to him or his
advices for particulars in connection with the repairing and
refitting of the brigantine
Julia Blake."
"We suppose that your next will furnish instructions regarding
funds for expenses here; if you don't provide the needful, same
Page 107 U. S. 422
will likely be raised by bottomry and respondentia loan, payable
on arrival at New York."
"The
Julia Blake should be ready for sea about 15th
proximo, and"
"We remain, sir, your obedient servants,"
"[Signed] LAMB & CO."
To these letters of Lamb & Co., Blake, the owner, replied
thus:
"PARSBORO, July 4, 1876"
"James Donald Lamb & Co., Esqrs., St. Thomas:"
"DEAR SIR: I received your favor yesterday, as likewise of the
13th June, by way of Philadelphia, on the 29th day of June. My dear
sirs, I did not know who to write to until lately, as Mr. J. F.
Whitney was writing and getting me to write to G. R. Smith, Saint
Thomas. I don't know any person there. Please excuse me, as I could
not answer your letter before this time. As for the
Julia
Blake and the funds for repairing, I think it will be all
right. I hope it won't be too much. I think J. F. Whitney will see
it all paid after she comes to N. York. Please give all the time
you can, and I guarantee you will have the pay, as I pay everyone.
My dear sirs, this is a thing I never had to do before. You or any
person acting for the
Julia Blake will be sure of your
pay. The vessel is worth all expenses. I depend on you to do what
is right and just. After adjustment and everything, the whole of
the repairs won't come out of me. I think I will be able to pay my
share, as the Captain Noltin will tell you. I want you to make sure
of yourself by bottomry until you see how this will go in N. York.
You will please let me know by return of steamer from St. Thomas
all the particulars, as also the amount of repairs, and by so doing
you will much oblige your humble servant,"
"[Signed] PETER BLAKE"
On receipt of this, Lamb & Co. wrote the following
letter:
"Copy pr. S.S.
Alpha"
"ST. THOMAS, 20 July, 1876"
"Peter Blake, Esq., Parsboro, N.S.:"
"DEAR SIR: We have to acknowledge the receipt of your valued
favor of 4th instant, the contents of which claim our best
attention."
"The
Julia Blake is progressing with her repairs, and
will soon be ready to take in cargo; we cannot at present give you
any precise estimate of the expenses, as a good deal remains to be
done
Page 107 U. S. 423
yet, but Captain Knowlton is putting the vessel in first-rate
order, having at the same time regard to every practicable
economy."
"The case being one of 'general average,' the cargo will, of
course, contribute its proper proportion toward expenses, and we
think the documents which Captain Knowlton will take with him will
render the adjustment speedy and satisfactory to all the interests
and parties concerned."
"We are, dear sir, yours, faithfully,"
"[Signed] LAMB & CO."
Under date of June 1, 1876, Lamb & Co. wrote the shipper of
the cargo at Rio de Janeiro as follows:
"
Star Ball steamer from Porto Rico."
"RIO JANEIRO ST. THOMAS, 1st June, 1876"
"DEAR SIR: We have to advise that the brigantine
Julia
Blake put in here on the 27th ult., dismasted and leaky. A
survey has been held, and for effecting repairs, etc., the cargo is
being discharged."
"Captain Knowlton tells us that he has cabled the 'casualty' to
the United States. As the cargo is consigned 'to order,' we have
been unable to acquaint the New York consignees of the
misfortune."
"We remain, yours faithfully,"
"[Signed] LAMB & CO."
During all the time the vessel was at St. Thomas, there was
facility for telegraphic communication with New York, and until the
21st of July with Rio de Janeiro, by way of New York, London,
Lisbon, and Perambuco. On this last date, a break occurred in the
cable between Bahia and Rio de Janeiro, but the Western Union
Telegraph Company continued to transmit telegrams to Bahia, from
whence they were forwarded to Rio de Janeiro, the time required for
transmission from New York to Rio de Janeiro being about five days.
These lines of telegraph were often employed by merchants and men
of business at St. Thomas, and that from St. Thomas to New York was
known to and used by the claimants. From the findings, it does not
appear that the telegraph was used by any of the parties after the
telegram was sent the owner of the vessel on the 29th of May, and
no other letters appear to have passed between the parties until
after the vessel had completed her repairs and sailed with her
cargo for New York.
Page 107 U. S. 424
Immediately after the second survey was completed, the repairs
on the vessel were commenced. The bills for the repairs and
supplies were paid by Lamb & Co. after the master had certified
to their correctness. The repairs were completed on the 22d of
July, and thereupon the master advertised for a loan on bottomry
and respondentia of ship, freight, and cargo, to the amount of
$7,500 or thereabouts. The Bank of St. Thomas alone made a
proposal, and for the whole amount at a maritime interest of
fourteen percent. Lamb & Co. made no inquiries as to the
necessity of the repairs and supplies, but relied wholly on the
statement of the master. The only inquiry made by the bank was as
to the sufficiency of the security and the regularity of the papers
in their form of execution.
The discharge of the cargo was necessary in order to stop the
leaks and make the vessel seaworthy. The repairs and supplies
furnished, as well as the remetaling, were necessary to put the
vessel in a seaworthy condition for a voyage to New York.
When the loan came to be closed, the master told Lamb & Co.
that a large amount of expenses had been incurred of which they had
no previous information, and that the amount required to defray the
expenses and pay their commissions and charges was $11,600. This
amount the bank advanced and took the bond. The vessel left St.
Thomas on the 5th of August. On her arrival in New York, the
payment of the bond was refused, and she, with her freight and
cargo, was libeled.
The cargo was not perishable, and would not have been injured by
being stored under cover at St. Thomas for three or four months,
and was worth in New York about $18,000. St. Thomas is a central
port, where vessels go seeking business, and to which parties
requiring vessels also go. Vessels for the shipment of merchandise
are always available there. The cargo could have been forwarded
from there by vessels other than the
Julia Blake for from
$1,000 to $1,500, and it was for the interest of the owners that it
should be so forwarded, rather than hypothecated to pay for repairs
to the
Julia Blake.
On the 28th of September, after the vessel had sailed for
Page 107 U. S. 425
New York, Lamb & Co. wrote the shipper of the cargo as
follows:
"Per S.S.
Nile, via Southampton."
"RIO DE JANEIRO ST. THOMAS, 28th September, 1876"
"DEAR SIR: Your favor of the 13th July last reached us recently
via Porto Rico, and only after the
Julia Blake had sailed
from this port. The letter of instructions which you mention having
given to Captain Knowlton on sailing from Rio has never been laid
before us, nor did he produce the charter party, although we
repeatedly asked for it; he alleged that it had been mislaid or
lost at the time of the disaster at sea, and on being questioned,
denied having any instructions from you as to the consignment of
vessel in case of average. The bills of lading, being 'to order,'
left us no clue as to the consignees of cargo. The casualty was,
however at once cabled to the New York Board of Underwriters."
"While we regret that you should have felt any doubt as to our
compliance with your wishes, it will now be clear to you how
blameless we are in the matter."
"Whether Captain Knowlton purposely withheld information from us
or if he actually did lose the documents referred to remains at
present open for conjecture only, but the control intended to have
been placed with us remained, in part at least, in hands of the
captain, as master of the vessel."
"We would suggest that you advise us by mail of the dispatch of
all vessels conveying instructions from you to our firm in the
event of their putting into this port in distress -- would thus, if
necessary, be able at once to take up a position with the master,
and the protection of your interests at out hands can thus not be
disputed or ignored."
"The adoption of such a course on your part is, we think, more
advisable under present circumstantial means of mail communication
between Rio and St. Thomas."
"We are, dear sir, yours, very truly,"
"LAMB & CO."
The letter from the shipper referred to is not included in the
findings, and it nowhere appears that it was in evidence.
The case depends entirely on the authority of the master of the
vessel to give the bottomry bond on the cargo. It is now the
settled law of the English courts that a master
"cannot bottomry a ship without communication with his owner,
if
Page 107 U. S. 426
communication be practicable, and
a fortiori cannot
hypothecate the cargo without communicating with the owner of it,
if communication with such owner be practicable."
The Cassa Marittima, 2 App.Cas. 156. This doctrine was
first announced in
The Bonaparte, 8 Moore P.C. 459,
decided in 1853, and has been steadily adhered to since -- not,
however, without decided opposition by Dr. Lushington.
The
Hamburg, 2 Moore P.C.N.S. 289;
The Cargo ex Sultan, 1
Swabey 511. Whether the rule, to the extent it has been carried in
England, is in accordance with the general maritime law as
understood in this country and the maritime nations of Europe other
than Great Britain, or whether, since the
Julia Blake was
a British vessel, the authority of her master in a Danish port is
to be determined by the English law instead of the general maritime
law or the law of Denmark are questions we deem it unnecessary to
consider, for in our opinion, even under the most liberal
construction of any recognized rule which can be invoked for the
authority of the master over the cargo, this bond cannot be
sustained.
The master can neither sell nor hypothecate the cargo, except in
case of urgent necessity, and his authority for that purpose is no
more than may reasonably be implied from the circumstances in which
he is placed. He acts for the owner of the cargo because there is a
necessity for someone to do so, and, like every agent whose
authority arises by implication of law, he can only do what the
owner, if present, ought to do. Necessity develops his authority
and limits his powers. What he does must be directly or indirectly
for the benefit of the cargo, considering the situation in which it
has been placed by the accidents of the voyage. As was said by Sir
William Scott, in
The Gratitudine, 3 C.Rob. 240, 261, by
which the power of the master, under proper circumstances, to
hypothecate the cargo to pay the expenses of repairs on the ship
was incontrovertibly established:
"In all cases it is the prospect of the benefit to the
proprietor that is at the foundation of the authority of the
master. It is therefore true that if the repairs of the ship
produce no benefit or prospect of benefit to the cargo, the master
cannot bind the cargo for such repairs; but it appears to me that
the fallacy of the argument that the
Page 107 U. S. 427
master cannot bind the cargo for the repairs of the ship lies in
supposing that whatever is done for the repairs of the ship is in
no degree and under no circumstances done for the benefit, or with
the prospect of benefit, to the cargo, whereas the fact is that
though the prospect of benefit may be more direct and more
immediate to the ship, it may still be for the preservation and
conveyance of the cargo, and is justly to be considered as done for
the common benefit of both ship and cargo."
To the same effect is what was said by Chief Baron Pollock in
Duncan v. Benson, 1 Exch. 557:
"But this agency for the freighter is confined to cases
affecting his interest, and where the sale or pledge is directly or
indirectly for his benefit. It is directly beneficial where goods
are damaged by perils of the sea, and sold; it is indirectly so
where there is damage to the ship and the repairs become necessary
for the benefit of the whole adventure."
Sir Robert Phillimore was even more explicit in the case of
The Onward, L.R. 4 Ad. & Ec. 57, where he used this
language:
"The next consequence from the doctrine of agency is that the
master must sustain, to the best of his power, the interest of the
absent owner. This is a principle of general maritime law, and not
. . . of English law only. Boulay Paty observes, . . . The must do
that which there is fair reason to suppose the owner, if present,
would do. . . . The master is to remember the foundation of his
authority to give a bottomry bond on cargo is the prospect to
benefit, direct or indirect, to the proprietor of it. This
principle limits the authority of the master in this matter."
So in this country, Mr. Justice Washington said, in
Ross v.
The Active, 2 Wash. C.C. 228, 237:
"But at all events the necessity must be such as to connect the
act with the success of the voyage, and not for the exclusive
interest of the ship owner."
Undoubtedly, in all such cases, much is left to the master's
discretion, but, to use the language of Mr. Justice Story in
The Packet, 3 Mason 259, "he must exercise it
conscientiously for the general interest." This Court said, in
New England Ins. Co. v. The
Sarah Ann, 13 Pet. 387,
38 U. S. 400,
speaking of the analogous authority of the master to sell the
ship:
"All will agree that the master must act in good faith, exercise
his best discretion for the benefit of all concerned, and that it
can only
Page 107 U. S. 428
be done upon the compulsion of necessity, to be determined in
each case by the actual and impending peril to which the vessel is
exposed."
And in
The Amelie, 6
Wall. 18,
73 U. S. 27, it
was said:
"And this necessity is a question of fact, to be determined in
each case by the circumstances in which the master is placed and
the perils to which the property is exposed. If the master can
within a reasonable time consult the owners, he is required to do
it, because they should have an opportunity to decide whether, in
their judgment, a sale is necessary."
When the master is dealing with the cargo for the benefit of the
voyage, he "must endeavor to hold the balance evenly between his
two principals; he must not sacrifice the ship to the cargo or the
cargo to the ship."
The Onward, supra.
It is equally well settled that a lender, upon the hypothecation
of the cargo by a master of the vessel under his implied authority,
is chargeable with notice of the facts on which the master appears
to rely as a justification of what he is doing. Such a lender is
presumed to know that the power of the master is to be determined
by the necessities of the case in their legal operation on the
owner of the cargo. As necessity creates the agency, and that only
can be authorized which under the circumstances is reasonable and
just, he must make his own inquiries and judge for himself and at
his own risk whether if the owner were present he would do or ought
to do that, or something equivalent, which the master is
undertaking to do for him in his absence. A lender cannot shut his
eyes to existing facts as they appear or by reasonable inquiry
could be made to appear, and treat with the master as a general
agent, having authority to do not only what the owner ought to do,
but what he might do if he chose. Before there can be a recovery
against the owner, it must be shown that the circumstances were
such as to make it apparently proper for the master to do what he
has done. To this extent, the burden of proof is clearly on the
lender.
The Aurora, 1
Wheat. 96;
Thomas v.
Osborn, 19 How. 22;
The
Amelie, 6 Wall. 18;
The
Grapeshot, 9 Wall. 129;
The
Lulu, 10 Wall. 192. In these cases, the rule was
applied to the hypothecation of the ship by the master, where less
strictness will ordinarily be required than in the hypothecation of
the cargo because the master is the
Page 107 U. S. 429
appointed agent of the owner of the ship, but the involuntary
agent of the owner of the cargo.
It remains only to apply these well settled rules to the facts
of the present case.
When the loan was advertised for and put on the market, the
cargo was out of the vessel and in store. It was not perishable,
and could be sent forward to its place of destination in another
vessel without any considerable delay at a cost of from $1,000 to
$1,500. The vessel had been two months in port. Her cargo was
consigned to New York. The bills of lading were drawn to the order
of the shipper, but accompanying them was a letter to the master
instructing him to whom to report at the end of his voyage. If this
letter had been lost, as the master claimed it was, the fact that
it had been given was not forgotten by him, for when he first went
to Lamb & Co., he told them of its loss. From that time for
nearly two months, and until the day before the loan was advertised
for, telegraphic communication between St. Thomas and Rio de
Janeiro was practicable and reasonably direct. The necessity for
unloading the cargo and making extensive and costly repairs on the
vessel to fit her for the further prosecution of the voyage was
known as soon as the surveys were completed, and yet neither the
master nor Lamb & Co. made any attempt to ascertain from the
shipper by telegraph his wishes about the disposition to be made of
the cargo under the circumstances, or even to get information as to
the names of the consignees in New York, with whom there could be
communication both by mail and telegraph. Lamb & Co. did
indeed, on the 1st of June, write the shipper by mail that the
vessel had put into St. Thomas dismasted and leaky; that a survey
had been held, and that, for affecting repairs, the cargo was being
discharged, but even this meager information did not probably reach
its destination until about the 13th of July, only a few days
before the loan was advertised for.
Although Lamb & Co. were engaged by the master to attend to
the business of the vessel and her repairs, they made no inquiry as
to the propriety of what was done, but relied entirely on the
statements of the master, and apparently allowed him to do what he
pleased, for it was not until a loan of $7,500 had been applied
Page 107 U. S. 430
for and taken that they knew it would require $11,600 "to defray
expenses and their charges and commissions," and then only when it
was told them by the master.
The findings show that when the vessel had been out from Rio de
Janeiro a little more then thirty days, "her rigging parted and her
masts fell, the mainmast breaking at the saddle and her foremast at
the head." On her arrival at St. Thomas, her cargo had to be
discharged to stop the leaks; her metal was "much broken and torn
away and ragged," and had to be replaced with new to make her
seaworthy for a voyage to New York, and although she sold when she
got to New York for but $4,500, leaving only $3,500 produced from
the vessel and freight to apply on the loan, the aggregate of her
expenditures in St. Thomas was $11,600.
From these facts it is to our minds apparent that when the
vessel arrived at St. Thomas, she ought not to have been repaired
at the risk of expense to the owner of the cargo without his
consent, and that this could easily have been ascertained by an
inquiry into the facts. She came in "dismasted and leaky" "for a
general equipment and refit," with a cargo substantially
imperishable, which might be forwarded in another vessel at
comparatively small expense, and it must have been easy to see that
to repair the vessel at the risk of the owner of the cargo would be
to place his interests in jeopardy without any urgent necessity on
his account. No master who "held the balance evenly between his two
principals" could have believed himself justified under the
circumstances in hypothecating the cargo for any such purpose
without notice to the owner. But when the repairs were completed
and the hypothecation was tendered, the impropriety of what the
master proposed to do was even more apparent. Then the offer was to
pledge vessel, freight, and cargo for $13,324, when the most casual
observer must have seen that the vessel and freight would actually
secure only a comparatively small part of the amount required. Of
all this the lender, who made no inquiries whatever, is chargeable
in law with notice. Had he inquired and been deceived through no
fault of his own, the case might have been different. But having
failed to inquire at all, he is presumed
Page 107 U. S. 431
to know all that the master knew. His case presents itself,
therefore, as that of a lender upon the hypothecation of a cargo by
the master, without communication with the consignee or owner, to
pay the expenses of permanent repairs to the vessel when it was
manifest that the owner of the cargo could not be benefited by what
was done to anything like the amount with which he was to be
charged.
It is contended, however, that the owner of the cargo has no
right to demand his property at an intermediate port unless the
voyage has been actually abandoned or the necessary repairs on the
vessel cannot be effected. The cargo owner is not bound to help the
vessel through with her voyage under all circumstances. It is the
duty of the vessel owner, and of the master as his appointed agent,
to do all that in good faith ought to be done to carry the cargo to
its place of destination, and for that purpose the cargo owner
should contribute to the expense as far as his interests may
apparently require, but he is under no obligation to sacrifice his
cargo or to allow it to be sacrificed for the benefit of the vessel
alone. He ought to do what good faith toward the vessel demands,
but need not do more. If he would lose no more by helping the
vessel in her distress than he would by taking his property and
disposing of it in some other way, he should, if the vessel owner
or the master requires it, furnish the help or allow the cargo to
be used for that purpose. To that extent, he is bound to the vessel
in her distress, but no further. When therefore a cargo owner finds
a vessel, with his cargo on board at a port of refuge needing
repairs which cannot be effected without a cost to him of more than
he would lose by taking his property at that place and paying the
vessel all her lawful charges against him, we do not doubt that he
may pay the charges and reclaim the property. Otherwise he would be
compelled to submit to a sacrifice of his own interests for the
benefit of others, and that the law does not require. What charges
must be paid will depend on the circumstances of the case.
Sometimes they may include full freight, expenses at the port of
refuge, general average charges, and possibly more and sometimes
less; but upon full payment of such as are in law demandable, the
cargo must be surrendered.
Page 107 U. S. 432
In the present case, it is not only found as a fact that it was
for the interest of the shipper that his property should be
forwarded by some other vessel, rather than that it should be
hypothecated to pay for the repairs, but everything else in the
findings points unmistakably to the conclusion that such repairs
could not have been effected without an expense to him of very much
more than it would cost to reclaim his property, pay all lawful
charges upon it, and send it forward by some other conveyance.
Under such circumstances, we have no hesitation in saying that the
master had no authority to pledge the cargo, as he did, without the
consent of the shipper or consignees. The notice given the shipper
was entirely insufficient, and furnished no such information as
would require him to act otherwise than he appears to have done. He
did not get the letter until nearly six weeks after it was written,
and from its contents he was justified in supposing that before his
property was encumbered to any considerable amount, he would be
notified by telegraph. Certainly so long as the mail only was used
to communicate with him, he need not have supposed it was necessary
at the end of six weeks to employ the telegraph for a response to
such information as he got. It must have been apparent from the
outset at St. Thomas that it would be necessary to hypothecate the
cargo to pay for the repairs if they were made, and there was no
excuse for not communicating that fact either to the shipper or the
consignees before it was too late for them to object or provide
against it. All this the lender of the money could have known if
inquiry had been made, and there was abundance of evidence in all
directions to show that no prudent cargo owner would voluntarily do
what the master was doing for him. Clearly, therefore, the
hypothecation of the cargo was unauthorized and void.
It is insisted, however, that if the bottomry bond cannot be
enforced, the cargo may be held in this suit for such charges as it
was liable for to the vessel. No such claim is made in the libel.
Full freight has been paid, and there is nothing in the case as it
comes to us to show that anything more was demandable. If the
vessel was unseaworthy when she left Rio de Janeiro, all the
extraordinary expenses she incurred on the voyage were probably
through her own fault, and not chargeable
Page 107 U. S. 433
on the cargo. At any rate, there is nothing in the record as it
now stands to make it proper for us to remand the cause for further
proceedings under this new claim.
Decree affirmed.